United States District Court, D. Massachusetts
ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY
SOROKIN UNITED STATES DISTRICT JUDGE.
December 31, 2014, plaintiff Timothy Turley filed a complaint
in this Court against the Municipal Police Training
Commission (“the Commission”), the Western
Massachusetts Regional Police Academy (“the
Academy”), Curtis McKenzie, Robert Powers, and Delilah
Yee (collectively, “the Commonwealth
defendants”), and Sean Shattuck. The complaint alleged,
among other claims, sexual harassment, gender discrimination,
age discrimination, breach of contract, and retaliation, all
arising from Turley's tenure at and dismissal from the
the Court's ruling on the Commonwealth defendants'
motion to dismiss and defendant Shattuck's motion for
partial judgment on the pleadings, six claims remain before
this Court. Doc. No. 29. Count I asserts a First Amendment
retaliation claim under 42 U.S.C. § 1983 against
McKenzie, Powers, Shattuck, and Yee in their individual
capacities. Doc. No. 1. Count II asserts a claim for
non-monetary relief under 20 U.S.C. § 1681
(“Title IX”) against the Academy and the
Commission. Id. Count III asserts a claim for
equitable relief under Mass. Gen. Laws chapter 214, § 1C
(“Chapter 214 sexual harassment”) against the
Academy. Count IV asserts a claim for equitable relief under
Mass. Gen. Laws chapter 151B (“Chapter 151B”)
against the Commission, and against McKenzie in his official
capacity, as well as a claim for monetary damages against,
McKenzie, Powers, and Yee in their individual capacities.
Id. Count VI asserts a claim for specific
performance for breach of contract against the Commission.
Id. Finally, Count VII asserts a claim for tortious
interference with contract, for monetary damages, against
McKenzie, Powers, Shattuck, and Yee in their individual
the Court are the defendants' motions for summary
judgment. The Commonwealth defendants move for summary
judgment on all claims pending against them. Doc. No. 118.
Separately, Shattuck moves for summary judgment on all claims
pending against him. Doc. No. 120. Turley filed a combined
omnibus opposition to the defendants' motions in which he
addressed only the First Amendment claim (Count I), the Title
IX claim (Count II), and the Chapter 214 sexual harassment
claim (Count III). Doc. Nos. 129; 134. Accordingly, the Court
ALLOWS the defendants' motions for summary judgment as to
Counts IV, VI, and VII (a) as unopposed and (b) due to
Turley's failure to prosecute these claims at this stage
of the litigation. That leaves for resolution the motions for
summary judgment on the First Amendment retaliation claim
against, in their individual capacities, McKenzie, Powers,
Shattuck, and Yee (Count I), the Title IX claim for
non-monetary relief against the Academy and the Commission
(Count II), and the Chapter 214 sexual harassment claim
against the Academy (Count III).
facts, based upon the undisputed facts before the Court,
Plaintiffs' factual submissions even where disputed and
those facts established by drawing all reasonable inferences
in Turley's favor, are set forth below.
worked for twenty years at the Suffolk County Sheriff's
Department. Doc. No. 136 at ¶ 2. He retired from the
Sheriff's Department in 2010 at the age of forty-three.
Id. at ¶ 3. In 2013, Turley decided to advance
his career by training as a certified police officer. Doc.
No. 1 at ¶ 12. To further this goal, Turley enrolled in
a 20-week police officer training course at the Academy,
which began in August of 2013. Doc. No. 136 at ¶ 198.
Alleged Hazing at the Academy
avers that on his first day at the Academy he was forced
“to place socks on [the] bare feet [of another cadet]
in front of the entire [class].” Doc. No. 136 at ¶
148. He was later required to write the Academy's use of
force model on the board “every day during his lunch
break.” Id. at ¶ 151. Turley was teased
by staff instructors Powers and Yee who often made jokes
suggesting that Turley suffered from “erectile
dysfunction” and “needed Viagra.”
Id. at ¶¶ 157, 162-63.
was not the only cadet who was the object of the staffs'
ridicule and jokes. Doc. No. 1 at ¶ 22. Cadets at the
Academy are hazed to “toughen them up, ”
Id. at ¶ 22, but much of the hazing is
“racist, sexist, and homophobic.” Doc. 136 at
¶ 146. For instance, one cadet was called “a
walking heart attack” and “fucking retarded,
” he was instructed to stop “sticking [his] ass
out” because he was “not at [his] boyfriend's
house, ” and was “ordered . . . to exchange
shoelaces with a female cadet whose laces were pink.”
Id. at ¶¶ 78, 80, 84-85. A cadet was asked
“Does your wife read the news paper [sic] while you
fuck her?” Id. at ¶ 100. Another cadet
was instructed to bring Vaseline to class. Id. at
¶ 107. One teacher instructed the class to stop
“ethnically altered vehicles.” Id. at
hazing escalated during the cadets' firearms training.
Shattuck, one of the firearms instructors, routinely
“scream[ed] and [swore] at [student officers] in order
to teach them to use their weapons while also feeling
stress.” Doc. 138 at ¶ 8. “Throughout the
firearms course, Shattuck would refer to the cadets as
‘ladies, ' ‘bitches, ' ‘faggots,
' ‘fags, ' and ‘retards'” Doc.
138 at ¶ 141. On one occasion, Shattuck handcuffed a
cadet (not Turley), while Shattuck “took his fingers
and placed them under [the cadet's] nose, asking [the
cadet] if they [Shattuck's fingers] smelled like the
cadet's wife.” Doc. 136 at ¶ 99. The hazing
“culminated” when “Shattuck grabbed [a
cadet's (but not Turley's)] buttocks behind the
genitals at the anus, forced his finger into the victim's
anus . . . and proceeded to rub his genital against the
victim, simulating sexual intercourse.” Doc. 1 at 30;
Doc. No. 136 at ¶ 110. After these incidents, Shattuck
told the cadets “what happens on the range, stays on
the range” and “you guys can all . . . bitch and
moan about how we have talked to you and treated you, but we
already have our badges.” Doc. 136 at ¶ 115.
Turley's Objections and Shattuck's
did not formally report the instructors' conduct during
his tenure at the Academy. Doc. No. 136 at ¶ 36. Turley
says, as a general matter, that he objected to Shattuck's
behavior on the firing range by making facial expressions and
through his body language. Doc. No. 138 at ¶ 217. Except
as described later in this paragraph he does not give further
details about when he made these expressions, who was present
when he made these expressions, or the particular context in
which he made them. Turley describes two specific instances
by which he says he voiced his objections. First, when
Shattuck asked a cadet if “his fingers smelled like
[the cadet's] wife, ” Turley made an upset face.
Id. at ¶ 219. Shattuck noticed Turley's
displeasure and asked Turley “What's your fucking
problem?” Id. Second, when Shattuck grabbed a
cadet and “simulated intercourse, ” Turley
approached to stop Shattuck. Id. at ¶¶
220-22. Shattuck released the cadet and asked Turley,
“Don't you have a sense of humor?”
Id. at ¶ 223. Turley responded
“That's not funny.” Id. These
incidents happened in Shattuck's classroom, and on the
firing range, respectively. Id. at ¶¶ 38,
45, 47-52. Turley does not identify the other staff, if any,
present during either incident.
addition to these instances, Turley says he also
“admonished other cadets for nervously laughing at
Shattuck's inappropriate behavior.” Id. at
¶ 227. A cadet told him “to keep it down because
the staff was listening.” Id. at ¶ 227.
Turley does not describe where this occurred, or which
instructors, if any, were listening. Id. at ¶
later told Turley that if Turley ever graduated, then Turley
could “tell [Shattuck] to go fuck himself.”
Id. at ¶ 223. Turley understood Shattuck's
statement as a threat. Doc. No. 136 at ¶ 181.
Shattuck's Alleged Retaliation
final day of weapons training at the firing range, cadets
take a firearms qualification test, during which they fire
their weapons at paper targets. Doc. No. 138 at ¶ 58.
Instructors then score the cadets' tests by reviewing the
cadets' targets. Id. at ¶ 60. A cadet is
allowed three attempts to pass. Id. at ¶ 64.
received a failing score on each of his three attempts to
qualify on the firearms test. Doc No. 138 at ¶ 199.
Turley saw Shattuck score his targets. Doc. No. 138 at
¶ 244. He did not see any other instructors look at his
target but admits that another instructor may have also
looked at his targets. Doc. Nos. 138 at ¶ 82; 122,
Attachment A at 53.
who has twenty years' experience qualifying on firearms
tests, believes that he shot well enough to pass. Doc. No.
134 at 9; Doc. No. 136 at ¶ 205. Doc. No. 138 at ¶
199. He contends that he actually did pass but that Shattuck
“maliciously fail[ed] him.” Doc. No. 138 at
subsequently passed a remedial firearms test, and then passed
the same test again after he was separated from the Academy.
Doc. No. 138 at ¶ 253-54.
the director of the Academy, was frequently on the firing
range during the hazing. Doc. 136 at ¶¶ 35, 192.
occasion, during a firearms training session, an instructor,
Cady, told Shattuck that he “would ejaculate in
[Shattuck's] mouth.” Id. at ¶ 38. The
instructors were standing near a live microphone, so the
comment was broadcast throughout the firing range.
was apprised of the incident (“the hot microphone
incident”) in November of 2013, and initiated an
investigation at the end of that month. Id. at
¶¶ 39-40. As part of the investigation, McKenzie
addressed the cadets, explained that he was investigating,
and asked if “they had any questions.”
Id. at ¶¶ 40-41. “[N]one
responded.” Id. at ¶ 41. McKenzie then
interviewed the instructors and spoke with Cady about the
incident. Id. at ¶¶ 42-47. Over the course
of the interviews, one instructor told McKenzie that he had
heard Shattuck make sexually aggressive comments to a cadet.
Id. at ¶ 45.
says that, on December 2, 2013, he and Powers arranged a
meeting with Shattuck and Cady to discuss the hot microphone
incident and the allegations of sexually aggressive comments.
Id. at ¶¶ 48. The meeting was held on
December 17, 2013, which McKenzie asserts was the earliest
date at which the parties were available to meet.
Id. at ¶ 49. December 17, 2013 is also the day
that McKenzie received a post-dismissal complaint letter from
Turley. Id. at ¶¶ 48-49. Turley argues
that the meeting was not pre-arranged but was instead held to
“manage the crisis created” by his letter.
Id. at ¶ 49. He offers no evidence supporting
dismissed Turley from the Academy on December 10 of 2013,
citing Municipal Police Training Committee regulation 550 CMR
3.09(4) as the reason for the dismissal. Doc. No. 136 at
¶ 17. The Municipal Police Training Committee
regulations govern police training programs in Massachusetts,
including cadet dismissal. Doc. Nos. 136 at ¶¶ 5,
23. Regulation 550 CMR 3.09(4) (“the three strikes
rule”), requires that a cadet be dismissed if he fails
“any three tests.” Doc. No. 136 at ¶ 6. When
a cadet fails a test, the cadet receives an “action
notice.” Doc. 136 at ¶ 215. Per the three strikes
rule, a cadet will be dismissed from the Academy upon his
third action notice.
received failing scores on three examinations during his
tenure at the Academy: the firearms test, supra 5-6,
a comprehensive exam, and the Standardized Field Sobriety
Test, (“SFST”), Doc. Nos. 138 at ¶ 104; 136
at ¶¶ 18-19, 226-31.
McKenzie's Alleged Retaliation
the three strikes rule requires that “any student
officer who fails . . . any three tests . . . be
dismissed for non-disciplinary reasons, ” Police
Training Regulations, 550 CMR 3.09(4) (emphasis added),
McKenzie instructed the cadets that only comprehensive exams
would count towards the “three strike rule.” Doc.
No. 136 at ¶ 219. He described the comprehensive exams
as four tests “which the students would be given
advance notice and ample time to prepare for.”
Id. at ¶¶ 216-17. After the first
comprehensive exam, McKenzie told the class that it
“would be impossible to fail out of the academy for
academic reasons if they passed a second comprehensive exam
on their first attempt.” Id. at ¶ 222.
SFST is not a comprehensive exam. Id. at ¶
217-220. The test covers only one subject and the material is
taught over the course of only three days. Id. at
¶ 265. Turley failed the SFST. Id. 231.
McKenzie treated Turley's failure of the SFST as his
third and final failure under the three strikes rule.
Id. at 232. Turley argues that this treatment was
“retaliatory.” Id. at ¶ 196.
Turley's Post-Dismissal Letter
his dismissal, Turley submitted a letter alleging that he
experienced inappropriate hazing at the Academy and that his
dismissal was retaliatory. Doc. No. 136 at ¶ 26-28.
same day that McKenzie received Turley's letter, he met
with Shattuck, Cady, and Powers purportedly to discuss his
investigation of the hot microphone incident and the
allegations that arose during the subsequent
investigation.Id. at ¶¶ 48-49.
Following the meeting, McKenzie collected reports from
thirteen cadets and ultimately fired Shattuck and Cady.
Id. at ¶¶ 55-56. McKenzie ...